The concept of social dialogue has become empty rhetoric, divorced from reality.
Darragh Golden
We live in Orwellian times. Although it’s not quite the dystopian scenario of George Orwell’s magnum opus 1984, there are alarming commonalities—including the phenomenon of ‘doublethink’, where rhetoric is used to obfuscate meaning. Social dialogue has fallen foul of this device.
‘Social
dialogue’ was imbued with meaning by the then president of the European
Commission, Jacques Delors, in the 1990s. Recently, however, it has
been hollowed out, yet the concept is still frequently rhetorically
deployed.
Consensual approach
In March 2015, the commission held a high-level conference marking a new start for social dialogue. During his closing remarks, its president, Jean-Claude Juncker, applauded
the social partners for realising a consensual approach. ‘[L]et us
strive to do as well as those who were our illustrious and virtuous
predecessors,’ he concluded, for ‘a social market economy requires a
European social dialogue.’ And he insisted: ‘It is the social partners
who are in charge of the social dialogue. There is no tripartism, if
bipartisanship does not work.’ Hence, the onus was placed firmly on the
social partners to produce agreement.
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The
following December the social partners in public administration, the
EPSU and EUPAE, representing the workers and employers respectively,
secured an agreement on information and consultation rights for
central-government administrations. The agreement came at a time when
public administrations were coming under constant pressure to reorganise
and streamline work practices, while at the same time improving the
quality of services for citizens. The social partners held the
unambiguous view that the agreement would result in a directive, thereby
enhancing the rights of 9 million workers.
This was welcomed
by the commission, as a ‘contribution to a modern and high-quality
public service across Europe’. In a letter to the social partners, it said it would ‘carry out a proportionate impact assessment of the Agreement’, in line with Juncker’s ‘better regulation’ agenda.
The
assessment was however never conducted. The commission had no intent to
initiate legislation. And rights were denied to millions of workers.
Case filed
The
EPSU filed a case against the commission, for breaching article 155(2)
of the Treaty on the Functioning of the European Union. In a nice irony,
this article originates from an agreement concluded by the European
social partners in 1991.
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It
was the first time proceedings had been taken by a European trade union
against the commission. The strategy was seen as risky, for the outcome
would determine the rights of EU social partners on matters of labour
and social law, and the EPSU’s decision to take the legal route met
disquiet from some trade unionists.
Notwithstanding, a resolution
supporting that decision was overwhelmingly endorsed by the European
Trade Union Confederation at its May congress in Vienna. The deputy
general secretary Esther Lynch insisted: ‘It is not acceptable for the
commission to say it supports social dialogue, but then do the
opposite.’ In other words, no more doublethink.
No obligation
A
four-hour public hearing was held in Luxembourg at the EU General Court
that month. On October 24th, it ruled that the commission, despite
official rhetoric to the contrary, was under no obligation whatsoever to
exercise its sole right to initiate legislation. What might the
implications be for sectoral social dialogue?
It is well
acknowledged in the scholarship on European social dialogue that the
‘shadow of law’ is fundamental to securing a successful outcome. In the
absence of the commission’s willingness to draft legislation on a
specific item, agreements would be difficult to initiate, never mind
conclude.
This is largely because employers’ associations are less
inclined to engage meaningfully in a process of negotiation unless
there is a proactive commission prepared to initiate legislation which,
to all intents and purposes, could favour the interests of workers over
those of employers. Under the ‘shadow of law’ numerous pieces of
legislation were initiated and approved by the Council of Ministers,
including on parental leave and part-time and fixed-term work.
Speaking the language
A recent analysis
of the evolution of social dialogue by a former commission official,
Jean-Paul Tricart, is quite critical of the Barroso and Juncker
commissions. While the two commissions under José Manuel Barroso were
firmly committed to limiting legislative developments in the social
sphere, the Juncker commission, as indicated, sought to set itself apart
from its predecessor by speaking the language of a more social Europe.
One
such endeavour was the ‘better regulation’ package. From the wording,
one might be forgiven for thinking that the initiative embraced a more
inclusive approach to policy-making. In reality, it was about the power to reject unilaterally proposals submitted by outsiders.
Despite
the rhetoric, Tricart argues, ‘the Better Regulation initiative
established procedures that institutionalised the Commission’s mistrust
and suspicion towards the social partners and their role in the
legislative process’. He charges the commission with ‘thus assuming a
discretionary power such that it cannot help but discourage the social
partners from engaging in collective bargaining at European level’.
If
Tricart’s analysis does not quite occlude the prospect of a social
Europe, the court’s ruling against the EPSU does precisely that. It
means that social dialogue can only proceed on questions that have the ex-ante blessing of the commission. This undermines the autonomy of the social partners to address issues pertinent to their sectors.
Trust integral
Trust
is integral to collective bargaining. In the past, sectoral trade
unions could trust the commission to implement agreements reached with
employers. This was important in ensuring that unions had a stake in the
process of European integration. The sun has now set on that trust, which raises questions for the future of social dialogue and the European social model.
This
trust, which was established over two and a half decades, was
effectively renounced by the commission in its contributions to the
court. The EPSU deemed
the commission’s line of argument ‘a betrayal’ and ‘cynical’ and it
said: ‘The Commission cannot be trusted to assess social partner
agreements on their merits.’
How the European social partners
react remains to be seen. Whether trust can be rebuilt with the
commission is another open question. If there is a silver lining to the
clouds now overlaying the ‘shadow of law’, it is that the commission’s
doublethink has been laid bare—as Orwell’s 1984 sought to do.
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